Commissioning Economic Equality? Lessons from Scotland
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/0067205X231187976 |
| Author | Rosalind Dixon,Joseph Lavery |
| Date | 01 September 2023 |
| Subject Matter | Special Issue: Inequality and Public Law (Part I) |
Special Issue: Inequality and Public Law (Part I)
Federal Law Review
2023, Vol. 51(3) 315–332
© The Author(s) 2023
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DOI: 10.1177/0067205X231187976
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Commissioning Economic Equality?
Lessons from Scotland
Rosalind Dixon*and Joseph Lavery**
Abstract
The Scottish Poverty and Inequality Commission (hereafter ‘the Commission’)isarelatively
new fourth branch institution with responsibility for addressing both poverty and inequality
in Scotland. Nonetheless, it has made important, if modest and incremental, inroads in achieving
these objectives, by encouraging the collection and use by government of relevant data in
policy-formation; and the expansion and acceleration in the roll-out of important substantive
policies focused on alleviating child poverty. The question this raises is what underpins this
institutional success. The article draws attention to three key factors: the Commission’s
distinctive combination of independence and a collaborative approach to policymaking, sup-
ported by a ‘triangular’relationship between the government, Commission and civil society; its
expertise and perceived legitimacy; and the unique policy context presented by the COVID-19
pandemic. These factors, it suggests, also offer useful lessons for constitutional and institutional
designers elsewhere —about both the promise and contingency and four branch solutions to
problems of economic exclusion and disadvantage.
Accepted 23 February 2023
I Introduction
The Scottish Poverty and Inequality Commission was established in 2017, with the goal of
promoting the reduction of poverty and inequality in Scotland.
It is too early to assess the Commission’s long-term legacy,but there are signs that it is making an
important —even if modest and incremental —contribution to tackling economic disadvantage in
Scotland.
In the last few years, it has had made several important contributions to promoting a more
economically inclusive and equal Scotland: it has promoted the gathering and use of relevant data in
policymaking; the expansion of certain programs, such as free school lunches; and helped ac-
celerate the roll-out of new programs, such as the government’s child support grant. It has even
begun to tackle broader structural issues of intersectional inequality and economic inequality in the
Scottish tax system.
*Professor of Law, University of New South Wales. This work was funded by the Manos Foundation.
**Pupil barrister at 11KBW.
What, then, underpins this success of a new institution tackling some of the most difficult
economic and social challenges of our time, even if it is success that is modest and incremental
in nature? In a comparative context, scholars have shown that constitutional courts can play an
important role in helping expand and accelerate access to justice, including in the context of
various social and economic rights, such as the right to food and social welfare support.
1
Even
governments committed to addressing economic disadvantage and inequality do not always
succeed in doing so. They can lack the information or data necessary to do so or be subject to
‘blind spots’and ‘burdens of inertia’affecting the achievement of these commitments.
2
Under the right conditions, courts can also play an important role in countering these variou s
blockages —they can prompt the gathering of relevant information, draw attention to un-
foreseen policy holes or consequences, suggest policy alternatives and increase pressure or
momentum for action in certain areas.
3
Our research further suggests that under certain favourable conditions, independent com-
missions or ‘fourth branch institutions’canplayasimilarrole.
4
To analyse this question in a
Scottish context, we engaged in both a comprehensive analysis of the Commission’s outputs and
a more focused analysis of its processes through a mix of documentary researc h and interviews
with members and observers of the Commission.
5
And this analysis pointed to real, if modest
and incremental, improvements in policies aimed at addressing poverty in Scotland in the
relevant period.
A number of factors also appear to have contributed to this success: the Commission was adopted
by the Scottish Nationalist Party (‘SNP’) government as part of a broader commitment to creating a
‘well-being society’, and in particular to addressing the economic needs of children and a range of
‘priority families’.
6
This background has clearly aided the success of the Commission, in that many
of the Commission’s recommendations have met with a receptive response from government. The
Commission has expertise in relevant policy areas and has worked to develop a ‘triangular’re-
lationship with government and civil society or the third sector in Scotland.
7
This echoes the
conditions for success of courts in comparable contexts, such as the role of the Supreme Court of
1. See Nick Robinson, ‘The Structure and Functioning of the Supreme Court of India’in Gerald Rosenberg, Sudhir
Krishnaswamy and Shishir Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change
(Cambridge University Press, 2019) 23; Alyssa Brierly, ‘PUCL v Union of India’: at 212; Rosalind Dixon and Rishad
Chowdhury, ‘A Case for Qualified Hope’: at 243; Varun Guari and Daniel M Brinks (eds), Courting Social Justice:
Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge University Press, 2009)
vol 7(3).
2. Rosalind Dixon, ‘Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review
Revisited’(2007) 5(3) International Journal of Constitutional Law 391 (‘Creating Dialogue About Socioeconomic
Rights’); Rosalind Dixon, ‘The Core Case for Weak-Form Judicial Review’(2016) 38 Cardozo Law Review 2193 (‘The
Core Case for Weak-Form Judicial Review’); Rosalind Dixon, Responsive Judicial Review: Democracy and Dysfunction
in the Modern Age (Oxford University Press, 2022) (‘Responsive Judicial Review’).
3. Dixon, ‘Creating Dialouge about Socio-economic Rights’(n 2) and Dixon, ‘Responsive Judicial Review (n 2).
4. Mark Tushnet, The New Fourth Branch: Institutions for Protecting Constitutional Democracy (Cambridge University
Press, 2021).
5. See interview with M Treanor (Interview, 27 October 2021, file on hold with author) (‘Treanor Interview’); P Kelly
(Interview, 16 November 2021, file on hold with author) (‘Kelly Interview’); A Cobham (Interview, 22 November 2021,
file on hold with author) (‘Cobham Interview’); B Scott (Interview, 23 November 2021, file on hold with author (‘Scott
Interview’); R Statham (Interview, 30 November 2021, file on hold with author) (‘Stratham Interview’).
6. Scottish Government, Every Child, Every Chance: The TacklingChild Poverty Delivery Plan 2018–22 (29 March 2018).
The relevant priority families are lone parents, families with a disabled adult or child, young mothers, minority ethnic
families, families with a child under 1, and larger families (with three or more children): at 8–9.
7. Cf Brierly (n 1); Dixon and Chowdhury (n 1).
316 Federal Law Review 51(3)
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